Closing arguments heard in case of former officer charged with assault

PORT ORCHARD - Attorneys made closing arguments Wednesday in the case of a former Department of Defense police officer who allegedly attempted to kill his girlfriend by pushing her out a second-story window.

McCarthy, also a former Port Orchard policeman, faces one count of first-degree assault, which carries a maximum sentence of life in prison. State court guidelines, however, place a typical sentencing range of 15 to 17 years on the conviction.

McCarthy also is charged with second-degree assault with a deadly weapon, punishable by up to 10 years in prison.

McCarthy, after his arrest Nov. 30, 2010, pleaded guilty to 10 counts of violating a no-contact order resulting from an incident involving his girlfriend in 2008, in which was alleged to have set fire to her belongings. He has been in Kitsap County jail since the arrest.

Kitsap County prosecutors in August turned over the case to the state attorney general's Criminal Justice Division, citing a possible conflict of interest. County Prosecutor Russ Hauge said, at the time, he could not discuss details.

An earlier charge of attempted murder was dropped by the state.

"I just didn't know there was enough evidence to convince a jury of that," said Assistant Attorney General John Hillman, who took over the case.

On Wednesday, Hillman recapped the testimony of the woman, 47 at the time, who was seriously injured in the fall. He argued that the incidents of May capped a history of domestic abuse against her.

McCarthy, of Olalla, left his longtime post with the Port Orchard Police Department after the 2008 incident. He was never charged but entered a pretrial diversion agreement that included evaluation for alcohol abuse. He also received counseling for domestic violence.

The woman testified she had secretly planned to leave McCarthy on May 2, which led to an altercation in which he threatened her with a gun.

At one point, she said, she kicked his groin in self-defense. Then, fearing for her life, she climbed into the open window, planning to lower herself from the windowsill. But he pushed her, causing the fall that shattered her ankle and fractured her shoulder.

She did not file a police report until nearly four months after the incident, Hillman said, because she was afraid of the defendant and fearful he might harm their dog while she was in the hospital.

"This dog meant everything to her," Hillman said.

Hillman noted the woman's belief that the defendant's connection to law enforcement afforded him an element of immunity from prosecution. A Harborview Medical Center social worker who testified said the woman called it "the blue shield."

During the trial, McCarthy repeatedly denied the allegations. At one point, in response to questioning from Hillman, he said, "Sir, I did not put a gun to her head, and I did not shove her out the window."

McCarthy said he was in the shower getting ready for work when, shortly after 4 a.m., he heard a crash and screaming. When he found the woman outside on the deck, curtains and a curtain rod from the window above were on her body.

He knew she was planning to leave, he said, and he had asked her to change the curtains in the spare room, where she had been sleeping. He had earlier heard the dryer going and assumed she was doing what he had asked.

Defense attorney Tim Kelly raised questions about the woman's credibility, which he described as "dubious."

He asked why, if she were fearful of McCarthy, she would have had repeated contact with him after the 2008 incident, substantiated by phone records and acknowledged by both parties.

Kelly hammered on the delay in reporting and sketched out a scenario in which the woman could have planted the gun allegedly used by McCarthy inside the house on Olalla Valley Road some weeks after the incident.

"This case comes down to credibility. It comes down to the credibility of two people," Kelly said. "If you have reason to doubt her testimony, you have no choice but to find the defendant not guilty."

Both attorneys referenced testimony of an orthopedic expert called by the prosecution, who said the woman's fractures were consistent with a fall out the window resulting from a hard shove, not a simple jump. Kelly said the testimony lacked weight, because the expert did not have direct observation of the woman's body, only the conflicting observations of others.

Jury deliberations continue Thursday.

This story has been corrected. Charges of violating a protection order stemmed from a 2008 incident, not the May 2, 2010 incident.